April 11, 2016
from Superior Court, judicial district of Tolland, Fuger, J.
E. Brodeur, assigned counsel, for the appellant (petitioner).
D. Trudeau, deputy assistant state's attorney, with whom,
on the brief, was John C. Smriga, state's attorney, for
the appellee (respondent).
DiPentima, C. J., and Keller and Prescott, Js.
petitioner, John Moye, appeals following the denial of his
petition for certification to appeal from the judgment of the
habeas court denying his petition for a writ of habeas
corpus. On appeal, the petitioner claims that the court
abused its discretion by denying his petition for
certification to appeal, and improperly (1) determined that
his criminal trial counsel had not provided ineffective
assistance by failing to request a sequestration order, (2)
violated his right to due process by failing to review all of
the evidence admitted at the habeas trial, and (3) refused to
issue a capias for an absentee witness. Having thoroughly
reviewed the record, we conclude that the habeas court
properly denied the petition for certification to appeal.
Accordingly, we dismiss the appeal.
following facts, as set forth by this court on direct appeal
or as found by the habeas court, and procedural history are
relevant to this appeal. ‘‘On the evening of
April 30, 2005, after Clarence Jones, the victim, asked him
for a ride, Jerry Booker picked up Jones, Roderick Coleman
and the [petitioner]. The group briefly stopped at
Booker's house in West Haven and then proceeded to the
Ebony Lounge in New Haven. Coleman and the [petitioner] went
inside for approximately fifteen minutes, while Booker and
the victim waited in the car. When Coleman and the
[petitioner] returned to the car, Coleman asked Booker to
drive to the Pleasant Moments Cafe in Bridgeport, where his
girlfriend worked as a dancer.
arriving at Pleasant Moments Cafe, Booker, Coleman and the
victim entered the club while the [petitioner] stayed in the
car. The three men who went inside the club were searched for
weapons before they were allowed to enter. When Pleasant
Moments Cafe closed for the night, Booker, Coleman and the
victim emerged from the club with Tamara Wilson,
Coleman's girlfriend, Tawana Little and a third woman by
the name of Jada. They all got into Booker's car. Booker
was the driver, the victim and Jada rode in the front
passenger seat, the [petitioner] sat behind Booker, Little
was seated next to him, and Wilson sat on Coleman's lap
behind the front passenger's seat.
next drove to a nearby gasoline station. Booker, the victim
and Jada got out of the car and entered the gasoline station.
With the two men and Jada out of the car, the [petitioner]
began telling the other passengers about his belief that
Booker and the victim planned to rob him. He said that he was
going to ‘act up.' Those who went into the gasoline
station returned to the car, and the group left the gasoline
station to drop off Jada.
Booker was driving to Jada's house, his cellular
telephone rang. He answered the telephone and handed it to
the victim when he realized that it was the victim's
mother calling. Then a loud bang came from the backseat. The
victim's mother heard someone say: ‘Call 911.
He's been shot.' The [petitioner], holding a gun,
ordered everyone to get out of the car. Booker and Jada got
out of the car, the [petitioner] got into the driver's
seat, pushed the victim's body out of the car and drove
driving a short distance, the [petitioner] stopped the car,
wiped down the steering wheel and car handles, and exited the
car with Little, Wilson and Coleman. The group got into a
taxicab and went to Little's house in New Haven. Once at
Little's house, the [petitioner] again told the others
that he believed that he was going to be robbed and that was
why he shot the victim. He told Little that he had tried to
shoot the victim in the face and also told Little and Wilson
that they should ‘take it to the grave.'
[petitioner] was arrested on May 20, 2005. He was found in a
house in Stamford, lying across the seats of several chairs
under a dining room table. The [petitioner] was charged with
murder, carrying a pistol without a permit and criminal
possession of a pistol. He was found guilty of murder and
carrying a pistol without a permit, and entered an
Alford plea with regard to the criminal
possession of a pistol charge.'' (Footnote added.)
State v. Moye, 119 Conn.App. 143, 146-47,
986 A.2d 1134, cert. denied, 297 Conn. 907, 995 A.2d 638
petitioner appealed to this court from the judgment of
conviction. On direct appeal, ‘‘[he claimed] that
(1) there was insufficient evidence to support his conviction
of murder, (2) the [trial] court improperly instructed the
jury on the murder charge, (3) the prosecutor committed
reversible impropriety during the [petitioner's]
testimony and (4) the court improperly canvassed the
[petitioner] with regard to his Alford plea to the
charge of criminal possession of a pistol. We [affirmed] the
[petitioner's] conviction of murder and carrying a pistol
without a permit. We reverse[d], however, [his] conviction of
criminal possession of a pistol.'' Id.,
this court's decision on direct appeal, the petitioner
filed a petition for a writ of habeas corpus. In his third
amended petition, the petitioner claimed that his trial
counsel, Gary A. Mastronardi, rendered ineffective assistance
by failing (1) to request a sequestration order for
witnesses, (2) to object to certain testimony by the
state's firearms examiner, and (3) to file a motion in
limine to preclude testimony from the victim's
regard to his claim that Mastronardi rendered ineffective
assistance by failing to request a sequestration order, the
petitioner alleged that if Mastronardi had requested a
sequestration order, the state's witnesses, specifically,
the eyewitnesses to the shooting and the victim's mother,
would not have been able to corroborate falsely each
other's testimony. According to the petitioner, because
Mastronardi did not request a sequestration order that
prohibited the state's witnesses from discussing their
testimony, they were able to discuss and conform their
testimony prior to testifying. As proof that the state's
witnesses had discussed and tailored their testimony, the
petitioner emphasized the testimony of Wilson, who, at the
criminal trial, testified that she had ‘‘just
found out [that the victim] was on the phone with his
mother [at the time he was shot]. I didn't know that at
the time . . . .'' (Emphasis added.) Subsequent to
Wilson's testimony at the criminal trial, the
victim's mother testified that at the time that the
victim was shot, she was on the telephone with him. According
to the petitioner, the victim's mother and Wilson
discussed their testimony prior to either testifying in order
to conform their testimony and, thus, falsely corroborate
each other, which would not have occurred if Mastronardi had
requested a sequestration order.
28, 2014, the court, Fuger, J., held a habeas trial,
which lasted less than one full day. At the start of the
habeas trial, both parties offered and had admitted without
objection all of their exhibits. Following the admission of
both parties' exhibits, the petitioner testified on his
own behalf and then offered the testimony of Mastronardi.
After Mastronardi's testimony, the petitioner requested
that the court issue a capias for Wilson, who had not
appeared at the habeas trial, although the petitioner had
attempted to subpoena her. The court declined to do so. Both
parties then rested and proceeded to make closing arguments.
Immediately following closing arguments, the court issued an
oral decision from the bench denying the petition.
court began its oral decision, the transcript of which it
later signed and filed with the clerk of the trial court,
stating that it had ‘‘read the petitioner's
pretrial brief. I have not read all of the transcripts that
have been provided. I don't know that it is necessary to
do so.'' The court then determined, inter alia, that
the petitioner had not established that Mastronardi's
failure to request a sequestration order constituted
deficient performance. The court also found that the
petitioner had failed to establish that he was prejudiced by
Mastronardi's actions, in accordance with Strickland
v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80
L.Ed.2d 674 (1984).
August 5, 2014, the petitioner sought certification to appeal
to this court, which the habeas court denied. This appeal
followed. Additional facts will be set forth as necessary.
to addressing the petitioner's claims on appeal, we set
forth the applicable standard of review. ‘‘Faced
with a habeas court's denial of a petition for
certification to appeal, a petitioner can obtain appellate
review of the dismissal of his petition for habeas corpus
only by satisfying the two-pronged test enunciated by our
Supreme Court in Simms v. Warden, 229 Conn.
178, 640 A.2d 601 (1994), and adopted in Simms v.
Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994).
First, he must demonstrate that the denial of his petition
for certification constituted an abuse of discretion. . . .
Second, if the petitioner can show an abuse of discretion, he
must then prove that the decision of the habeas court should
be reversed on the merits. . . .
prove an abuse of discretion, the petitioner must demonstrate
that the [resolution of the underlying claim involves issues
that] are debatable among jurists of reason; that a court
could resolve the issues [in a different manner]; or that the
questions are adequate to deserve encouragement to proceed
further.'' (Internal quotation marks omitted.)
Riddick v. Commissioner of Correction, 113
Conn.App. 456, 459, 966 A.2d 762, appeal dismissed, 301 Conn.
51, 19 A.3d 174 (2011). ‘‘In determining whether
the habeas court abused its discretion in denying the
petitioner's request for certification, we necessarily
must consider the merits of the petitioner's underlying
claims to determine whether the habeas court reasonably
determined that the petitioner's appeal was
frivolous.'' (Internal quotation marks omitted.)
Taft v. Commissioner of Correction, 159
Conn.App. 537, 544, 124 A.3d 1, cert. denied, 320 Conn. 910,
128 A.3d 954 (2015).
petitioner first claims that the court improperly determined
that Mastronardi had not rendered ineffective assistance by
failing to request a sequestration order. Specifically, the
petitioner alleges that Mastronardi's failure to request
a sequestration order constituted deficient performance
because his conduct was not reasonable given the importance
of eyewitness testimony in this case. We are not persuaded.
following additional facts and procedural history are
relevant to this claim. At the underlying criminal trial,
neither Mastronardi nor the state requested a sequestration
order. Wilson, who was in the vehicle with the petitioner at
the time that the victim was shot, testified at the criminal
trial. During cross-examination, Mastronardi asked Wilson if
the victim was on a cellular phone at the time of the
incident. Wilson responded: ‘‘From my knowledge,
I just found out he was on the phone with his mother. I
didn't know that at the time cause he had drugs and I
wasn't all in his face. So, I didn't know what he was
doing at that time. I just know he was sitting
there.'' Mastronardi had Wilson's entire response
stricken from the record as unresponsive, and the jury was
instructed to disregard Wilson's statement.
following colloquy then ensued between Wilson and
‘‘Q. You never told the police about [the victim]
being on a cell phone?
‘‘A. No. . . .
‘‘Q. You just told the jury a few minutes ago
that you found out that [the victim] was on a cell phone. Is
that right? . . . Yes or no.
‘‘Q. And you found that out from [whom]? The
‘‘A. No. I'd rather not say. It don't
‘‘Q. Well, somebody had to tell you something